Challenging Zille has nothing to do with free speech and censorship: law expert

Constitutional law expert Pierre de Vos says that holding Western Cape premier Helen Zille accountable for what she tweets – even if it means she gets fired – has little to do with freedom of speech and censorship.

Zille found herself in hot water earlier this month after tweeting that certain aspects of colonialism – specifically its legacy – were not all negative, claiming that it was thanks to the practice that South Africa enjoyed better infrastructure and an independent judiciary.

The backlash to her comments was immediate, with many condemning Zille’s stance, and others coming out in agreement.

Zille eventually apologised for her tweets, saying that they were never intended to ‘defend’ colonialism, but rather speak to the opportunities that it provided despite its cruelty.

However, the entire saga left the Democratic Alliance in a very tricky position, and Zille may be facing expulsion from the party.

What does the constitution say?

Party leader Mmusi Maimane openly condemned Zille’s comments, and said that the premier will face an internal investigation. Zille is expected to face the party’s legal team on Tuesday (28 March).

In turn, Zille, and those who support her views, raised concerns that taking action against her would lead to ‘thought policing’ within the DA, amounting to censorship and limiting freedom of speech in the country.

However, constitutional law expert, Pierre de Vos, says that bringing freedom of speech into it is misguided, as the whole saga has little to do with the protection of speech under the constitution.

According to de Vos, the constitution isn’t blanket protection for all speech. The constitution itself does not regulate speech or even describe what is considered hate speech.

“What (the constitution) does is to say that certain forms of speech are not protected by the constitution, which means any restriction imposed on such speech would not infringe on freedom of expression at all, as it would not be considered ‘expression’ for the purposes of free speech,” de Vos said.

Hate speech is regulated by a different Act.

Not free speech, not censorship

The clearest counter-point to why Zille is not being censored or having her speech limited is that she simply hasn’t stopped speaking.

Even after her initial tweets, Zille has continued to post her views, and even defended them in follow-up columns.

Simply put, “neither the criticism (nor any move to fire her) would prohibit her from continuing to express her views forcefully on all the platforms that her social status and political position give her access to,” de Vos said.

“No law limits her ability to speak. Unless one believes that one has a right to say whatever one wishes without having to face any consequences for what one says…(but) no one has an absolute right to say exactly what they wish without facing criticism or adverse consequences as a result of that speech.”

The real issue at hand in Zille’s case is a difference of opinion between two or more groups who believe only their views should be heard.

Zille’s supporters believe her opinions should be able to be said irrespective of who they offend, without having an ‘angry mob’ try to silence her. Zille’s opponents believe their counter-views should win out.

“Freedom of expression is thus invoked against itself,” de Vos said.

De Vos also argues that ‘freedom of expression’ is poorly understood by those who invoke it, and that the playing field is far from fair and open – with many voices only now being able to speak out freely against things that offend them.

The argument from Zille’s supporters perhaps isn’t that free speech is being limited, but rather that there is too much speech, expressing ideas that they do not agree with, de Vos said.

“It would be worthy to campaign for more informed, nuanced, critical, honest and generous engagement on social media. But, in my view, whether the engagements are kind or vicious, informed or ignorant, cruel or thoughtful, is neither here nor there from a free speech perspective.”

“I find the suggestion that harsh criticism of certain forms of speech on social media (and demands that the person who uttered the speech face consequences) amounts to censorship (perhaps by a lynch mob), rather odd and conceptually incoherent,” he said.

You can read de Vos’ full column on Constitutionally Speaking.


Read: The DA must not play the race card like the ANC, warns Zille

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Challenging Zille has nothing to do with free speech and censorship: law expert